United States v. Gonzalez-Perez

United States Court of Appeals
For the First Circuit

No. 12-1743

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID GONZÁLEZ-PÉREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Ripple,* Circuit Judges.

Tina Schneider, for appellant.
María A. Domínguez-Victoriano, First Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Jacqueline D. Novas-Debien,
Assistant United States Attorney, were on brief, for appellee.

January 23, 2015

*
Of the Seventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Defendant David González-Pérez

("González"), a former officer with the Puerto Rico Police

Department ("PRPD"), was charged with drug and gun charges for his

participation in fifteen drug transactions that were part of an FBI

sting operation aimed at corrupt police officers. After an eleven-

day trial, the jury acquitted González of all charges arising out

of the first drug transaction, as well as all firearm charges, but

convicted him on all other counts. González now appeals, arguing

that the district court erred by declining to give jury

instructions on entrapment, duress, and impeachment by prior

conviction, and by failing to prevent other trial errors at closing

arguments. Finding no reversible error, we affirm.

I. Facts

Aiming to combat corruption in the PRPD, in 2008 the

Federal Bureau of Investigation ("FBI") launched a sting operation

called "Operation Guard Shack," which has been described in detail

in other cases arising out of the same operation. See United

States v. Díaz-Castro, 752 F.3d 101 (1st Cir. 2014); United States

v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014); United States v.

Díaz-Maldonado, 727 F.3d 130 (1st Cir. 2013). The FBI hired

confidential informants to invite police officers, suspected to be

corrupt, to provide armed protection for drug transactions staged

and secretly recorded by the FBI. Police officers providing armed

-2-
protection for these drug transactions were usually paid between

$2,000 and $2,500 per transaction.

The FBI's main confidential informant in this case was

Héctor Cotto-Rivera ("Cotto"), a former PRPD officer. González and

Cotto had met and worked together at the PRPD. In early 2008,

while still working as police officers with the PRPD, González and

Cotto were charged at the state level for taking a bribe from an

arrestee to fix his case.1 As a result of these criminal charges,

they were both initially suspended and then terminated from their

employment with the PRPD. Both Cotto and González pled guilty to

omission in the fulfillment of their duties.

Cotto also faced federal charges for taking bribes.

Seeking leniency on the federal charges, Cotto became a

confidential informant for the FBI. He portrayed himself as a drug

dealer and was tasked with identifying corrupt police officers.

Cotto testified at trial that, since he already knew that González

was a corrupt officer, he approached González and asked him to sell

Cotto drugs. González, however, did not do so. Cotto testified

that, on other occasions, González approached Cotto asking him for

work in his purported drug businesses, but that Cotto did not offer

1
According to Cotto, González, who had arrested a person for
drugs and firearms, asked Cotto to be a middleman and receive
$8,000 from the arrestee in exchange for González's dismissal of
the charges. Cotto accepted González's proposal and received
$8,000 from the arrestee. Cotto testified that he and González
split the money evenly.

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him any job, supposedly because at the time they still had the

state bribery charges pending.

Sometime later, Cotto became involved in Operation Guard

Shack, where he played the role of the right-hand man for a drug

trafficker and was tasked with identifying and inviting corrupt

police offers to provide armed protection for the drug

transactions. The plan was to require each police officer

recruited to, in turn, recruit another corrupt police officer, so

that the FBI could identify additional corrupt officers. Cotto

approached police officers whom he already thought were corrupt,

including González.

On or about September 9, 2009, Cotto telephoned González

to tell him for the first time about an armed security job that he

had available for the following day. Cotto told González that the

job would pay $2,000. González, who was aware that the work being

offered was not legal,2 responded: "Okay. If you're gonna pay me,

yes. If you're gonna take me for a fool, no." After Cotto

reassured him that the job indeed paid $2,000, González enlisted

for the job. Details of the transaction were not discussed over

the phone, because González was reluctant to do so.3 Cotto did,

2
Although González claims that the word "drugs" was never
mentioned during the telephone conversation, he admitted that he
knew the job must have been illegal because of the high pay being
offered.
3
During the telephone conversation Cotto asked González: "You
want me to give you details, or not?" González responded: "Well --

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however, tell González that he needed to wear a bulletproof vest,

take a firearm with him, and bring another police officer to also

provide armed security. González agreed to wearing a bulletproof

vest but said he was unable to get a firearm or enlist someone else

for the job. Cotto told González not to worry about the firearm,

and reached out to a correction officer with whom he was acquainted

because a third person who could be trusted was allegedly needed

for the security detail. Cotto and González then discussed the

details about how González was to get to the apartment where the

security would be provided.

As planned, on September 10, 2009, González met with

Cotto at the Plaza Las Américas shopping mall, where they were

joined by Christian Díaz-Maldonado ("Díaz"), the correction officer

recruited by Cotto.4 They all drove together to an apartment in

Isla Verde, Puerto Rico, where the security would be provided.

This apartment had concealed audio and recording devices.

While waiting for the drug buyer at the apartment,

González drank beer and casually chatted with Cotto, Díaz, and the

purported drug trafficker, Eddie.5 After the drug buyer arrived,

no, I don't know if over the phone . . . ."
4
Díaz was charged and convicted in a separate case for his
participation in Operation Guard Shack. He appealed his conviction
and sentence, both of which were affirmed by this court. See Díaz-
Maldonado, 727 F.3d 130.
5
Eddie was really an undercover special agent in the FBI's New
York office.

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González frisked the buyer for concealed weapons and recording

devices. Eddie then brought out a piece of luggage and removed

bricks of fake cocaine from it. The buyer examined the bricks.

Upon the conclusion of the drug transaction, González and

Díaz escorted the buyer to the exit and returned to Cotto, who then

paid $2,000 to each González and Díaz. González took the money

without hesitation, counted it, and placed it in his pocket. As he

was getting ready to leave the apartment, González told Eddie, "we

are at your service."

After the September 10 transaction, González participated

in fourteen additional drug transactions. He was paid either

$2,000 or $2,500 for his participation in each of them. For these

subsequent transactions, González carried firearms. He also

recruited additional people to provide armed security for these

transactions, including his brother, his sister-in-law, his

neighbor, and his barber. These subsequent transactions had the

same modus operandi as the one that took place on September 10,

2009. Most of these transactions were preceded by recorded

telephone conversations between González and Cotto, during which

they discussed whether González had recruited others to assist in

the transactions, their names, and whether González had explained

to those recruited what was expected of them during the

transactions. González manifested his gratitude for being offered

these additional work opportunities, reiterated that he was at

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Eddie's service and indicated his willingness to engage in other

illegal activities, such as buying illegal firearms and

coordinating drug smuggling ventures for Eddie. González's last

transaction took place on March 16, 2010. He was arrested in

September 2010.

In August 2011, González was tried alone before a jury on

sixty-three counts contained in a second superseding indictment.

The charges included multiple counts of conspiracy to possess with

intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii)(II), 846; aiding and abetting an attempt to possess

with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii)(II), 846; 18 U.S.C. § 2; possession of a firearm in

relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A); and

aiding and abetting possession of a firearm in relation to a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A); id. § 2.

At trial, González admitted his participation in the drug

transactions, but claimed that he was carrying blank firearms. He

also claimed that when he agreed to participate in the initial

transaction, he did not know that it would involve drugs and that

it was not until the bricks of cocaine were pulled out of the

luggage in the middle of the first transaction that he realized

that he was in a drug transaction. González further claimed that

Cotto took advantage of his financial situation, and that he

continued participating in the transactions out of fear for his

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safety and that of his family. Accordingly, González requested

jury instructions on entrapment and duress. He also requested jury

instructions on impeachment of witness by prior conviction. The

district court denied his request.

Following an eleven-day trial, the jury acquitted

González of all the firearm charges and of the drug charges arising

out of the first drug transaction. González was convicted of the

drug charges arising out of the fourteen subsequent drug

transactions. He was sentenced at the lower end of his applicable

Guidelines' sentencing range (i.e., 292 months of imprisonment), to

be followed by a five-year term of supervised release. This appeal

followed.

II. Discussion of González's Claims

A. Denial of Instruction on Entrapment Defense

González claims that he was entitled to a jury

instruction on entrapment. He argues that there was enough

evidence in the record to find both that the government induced him

to commit the crimes by "forceful solicitation and dogged

insistence," and that he otherwise lacked the predisposition to do

so. Because González preserved his objection below, we review the

district court's refusal to give an entrapment instruction de novo.

United States v. Dávila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012). In

so doing, we examine the evidence in the light most favorable to

González. Id. at 10.

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 The defense of entrapment has two elements:

(1) government inducement of the criminal conduct; and (2) an

absence of predisposition on the part of the defendant to engage in

the criminal conduct. Díaz-Castro, 752 F.3d at 109; United States

v. Panet-Collazo, 960 F.2d 256, 259 (1st Cir. 1992). Inducement

requires not only giving the defendant the opportunity to commit

the crime but also a "plus" factor of government overreaching.

United States v. Guevara, 706 F.3d 38, 46 (1st Cir. 2013) (internal

quotation marks omitted). Examples of government conduct that may

satisfy this "plus" factor include "excessive pressure, such as the

use of intimidation, threats, or 'dogged insistence,' [and] 'taking

advantage of an alternative, non-criminal type of motive.'" Id.

(citations omitted). "Operations which merely give a defendant an

opportunity to commit a crime, including sting operations,

ordinarily do not constitute entrapment." Dávila-Nieves, 670 F.3d

at 9.

In order to be entitled to an instruction on entrapment,

the record must show "some hard evidence" of both government

inducement and the defendant's lack of predisposition. Id. This

evidence must be more than uncorroborated self-serving assertions.

United States v. Shinderman, M.D., 515 F.3d 5, 14 (1st Cir. 2008).

In assessing the sufficiency of this evidence, the district court

may not weigh the evidence, make credibility determinations or

resolve conflicts in the evidence. Dávila-Nieves, 670 F.3d at 10.

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Rather, it must determine whether the evidence is enough, "if

believed by a rational juror, to create a reasonable doubt that the

defendant committed the crime of his own accord." Panet-Collazo,

960 F.2d at 259.6

González claims that the government improperly induced

him to commit the charged crimes because Cotto was a friend of his,

knew of González's difficult financial situation, and called

González several times, first asking to buy drugs from him, and

then to offer him the armed security job. None of these

circumstances amount to improper government inducement.

First, González cites no evidence indicating that Cotto

solicited his participation by appealing directly to their

friendship. United States v. Baltas, 236 F.3d 27, 37 (1st Cir.

2001) (rejecting "the proposition that friendship, without a plea

predicated upon friendship, suffices legally as inducement"

(quoting United States v. Young, 78 F.3d 758, 761 (1st Cir.

1996))).

Second, González cites no evidence indicating that his

financial situation was such that he was at a particularly

6
We recently stated in Díaz-Maldonado that "the entrapment
defense is a difficult defense to raise and prevail on." 727 F.3d
at 139. There, we affirmed the district court's refusal to charge
the jury on entrapment and we noted that "[i]n twenty-two prior
appeals to this circuit challenging a trial court's refusal to give
a jury instruction on entrapment, we have overruled the refusal
only three times." Id. at 139-140. Subsequently, in Díaz-Castro,
we once again affirmed the district court's refusal to give an
instruction on entrapment. 752 F.3d 101.

-10-
vulnerable point in his life. All the record shows is that

González had various part-time jobs, the last one ending the week

preceding his first transaction, that he was receiving unemployment

benefits, and that he thought that the high payment offered by

Cotto would help him solve his financial situation. This is not

enough to constitute inducement. See United States v. Díaz-Díaz,

433 F.3d 128, 136 (1st Cir. 2005) ("The promise of financial gain,

however, even if significant, is insufficient to demonstrate

government inducement."); Baltas, 236 F.3d at 37 (holding that

merely presenting defendant with a plan to alleviate a "strangling

financial situation" does not constitute inducement).

Third, González's bare assertion that Cotto called him

several times and González declined previous invitations to commit

offenses does not amount to inducement. In analyzing whether there

was improper inducement, the method of purportedly inducing a

defendant is more important than the number of solicitations.

Accordingly, we have held that having an enthusiastic and

persistent buyer does not amount to improper government inducement.

United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)

("[M]erely giving a defendant an opportunity to commit a crime when

the government puts forth an enthusiastic and persistent buyer of

illicit goods cannot be improper inducement."); United States v.

Pratt, 913 F.2d 982, 989 (1st Cir. 1990) (rejecting defendant's

contention that he was entitled to a jury instruction regarding

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entrapment given evidence of multiple phone calls from the

government agent, even coupled with defendant's failure to return

phone calls and appear at scheduled meetings).

Here, there was no arm-twisting or undue coercive method

employed. Although González claims that there was some resistance

on his part before the first drug transaction and that it took

several calls before all details were ironed out, the record shows

that González's resistance had nothing to do with the idea of

providing protection for the transaction,7 but rather with the

requirement of taking a firearm with him and of recruiting someone

else to also provide armed security. The several telephone calls

were made to straighten out the details, not to convince him to do

the job. See United States v. Rogers, 102 F.3d 641, 646 (1st Cir.

1996) (rejecting defendant's claim that he was "targeted" because

he "proved ready enough to enter into talks" and "[h]is only

resistance was not to the idea of the crime, but rather to the

risks and the terms"). In fact, González seemed so eager to avail

himself of the opportunities to commit the crimes that he

repeatedly told Eddie that he was "very grateful" and "at his

service," and exclaimed "Oh wow! That's awesome, dude," upon

learning of an additional opportunity to provide armed security.

7
The first time that Cotto offered him a job providing armed
security, González said that he would be happy to participate if
Cotto would not "take [him] for a fool" and would actually pay him.

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 Moreover, additional evidence on the record undercuts

González's claim of improper government inducement. The evidence

showed that he associated with people connected to the drug world,8

he never reported any alleged threat, he participated in fifteen

separate transactions, and the videos of these transactions show

that he "d[id]n't look anything like a person who's being

entrapped." See United States v. Capelton, 350 F.3d 231, 243 (1st

Cir. 2003) (emphasizing these same circumstances as indicators that

there was no government inducement). In fact, he seemed so

comfortable around Eddie, the drug dealer, that he drank beer with

him, hugged him, and even invited his family and close friends,

including his brother, sister-in-law, and his neighbor, to

participate in the drug transactions. He also was comfortable

enough to make demands from Cotto and even reproached Cotto for not

answering his telephone call when González had been calling him all

day to ask him whether there was more work.

Although González would have us consider only the

evidence proffered by him, to the exclusion of other evidence in

the case, when we assess the sufficiency of the evidence for an

instruction on entrapment, we must consider all the evidence on

record. Looking at all the evidence in the light most favorable to

González, no reasonable juror could conclude that he was improperly

8
According to the evidence on record, while working as a police
officer, González let a drug trafficker, who would potentially face
drug and firearm charges, walk away in exchange for money.

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induced by the government. Because we conclude that González did

not carry his entry-level burden as to improper government

inducement, the district court's refusal to charge the jury on

entrapment was justified and we need not dwell on the evidence of

predisposition. United States v. Ramos-Paulino, 488 F.3d 459, 462

n.1 (1st Cir. 2007) ("Given the disjunctive nature of the

[entrapment] test, we can fulfill our appellate function . . . on

either inducement or predisposition." (alteration in original)

(quoting Capelton, 350 F.3d at 242-43)).

B. Denial of Instruction on Duress Defense

González claims that he was also entitled to a jury

instruction on duress. "Duress is a common law defense that

excuses criminal conduct if the defendant violated the law only

because [he] was unlawfully threatened by another person with death

or serious bodily injury." United States v. Vázquez, 724 F.3d 15,

27 (1st Cir. 2013). A duress defense requires proof that the

defendant committed a crime as a result of: "(1) an immediate

threat of serious bodily injury or death, (2) a well-grounded

belief that the threat will be carried out, and (3) no reasonable

opportunity to escape or otherwise to frustrate the threat."

United States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996); see

also Díaz-Castro, 752 F.3d at 108.

In support of his duress defense, González points to his

testimony that, because he was involved in a drug transaction and

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he "was providing security for [ ] an important person" who "had

control of everything" and who knew where González lived, González

believed that his own life and the lives of his family members were

in danger. It was implied, González claimed, that if anyone went

to the police, Eddie would take care of them "in a violent way."

Also, according to González, Cotto told him that González had to

continue participating in the drug transactions.

The district court concluded that the record lacked

evidence to support the duress defense and, thus, it declined

González's requested instruction. Since González's objection was

preserved below, we review de novo whether he made a threshold

showing that the record evidence, construed in his favor, supported

his requested instruction. Díaz-Castro, 752 F.3d at 108; United

States v. Baird, 712 F.3d 623, 627 (1st Cir. 2013). Here, González

has not made such a showing.

The alleged threat was not immediate, or even imminent.

If a threat at all, "it was no more than a 'vague threat of future

harm,' which is insufficient to support a duress instruction."

Vázquez, 724 F.3d at 28 (quoting Arthurs, 73 F.3d at 450) (refusing

to consider alleged threat of what gang-members "do to people [who]

. . . snitch" as immediate or "imminent"). In addition, the

alleged threat would be irrelevant to the crimes charged, as it was

directed at those who would "go to the police," rather than to

those who refused to provide armed security for drug transactions.

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In analyzing duress, "the relevant threat is that which 'caused the

actor to engage in conduct violating the literal terms of the

criminal law.'" Id. (quoting United States v. Bailey, 444 U.S.

394, 409 (1980)). González faces drug charges, not charges for

failing to report drug crimes. See Vázquez, 724 F.3d at 28

(rejecting a duress defense and concluding that because defendant

was "charged with violating the laws criminalizing the sale of

cocaine, not with failing to report those crimes," the threat

against "snitches" was irrelevant).

Even accepting that González might have construed the

alleged threat against those who would "go to the police" to be the

equivalent of a threat of harm for not actively committing the drug

crimes, "such a subjective belief would not constitute a 'well-

grounded' fear." Id. (quoting United States v. Bello, 194 F.3d 18,

27 (1st Cir. 1999)). The evidence required is that of threats

causing "a defendant of ordinary firmness and judgment" to believe

that he would face immediate danger if he did not commit the

criminal acts. Vázquez, 724 F.3d at 28 (citing United States v.

Castro-Gómez, 360 F.3d 216, 219 (1st Cir. 2001)). The evidence in

the record does not meet that standard. In fact, it shows the

opposite. There is no evidence that González was threatened before

making the initial choice to participate, when he already knew that

he would be providing security for a "dangerous" and "powerful"

person, who was involved in "something illegal." Then, after the

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first transaction, González told Eddie that he was "at his service"

and chose to return fourteen additional times, in which he showed

excitement at the prospect of participating in additional

transactions. In fact, he reproached Cotto for not picking up the

phone when González had been trying to call him asking for

additional work. González also took his close friends and family

to participate in some of the transactions. Based on that

evidence, a reasonable juror could not plausibly conclude that the

defendant faced immediate danger if he did not commit the crimes

charged.

In addition, the record is devoid of evidence suggesting

that González lacked a reasonable opportunity to escape or

otherwise frustrate the alleged threat against him. Vázquez, 724

F.3d at 28; Arthurs, 73 F.3d at 448. Instead, the record shows

that he was enjoying himself, drinking beer, and hugging Eddie.

See Díaz-Castro, 752 F.3d at 108-109 (rejecting defendant's claim

that he was unable to withdraw because there was no record evidence

of any effort to withdraw and the video showed defendant enjoying

himself).

Furthermore, the duress defense is unavailable if the

defendant placed himself in a situation in which it was probable

that he would be subjected to duress. Id. at 109. Here, the

record shows that González put himself in this situation not once,

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but numerous times, by making himself available and "at Eddie's

service."

In light of this, the evidence at trial, even when

construed in González's favor, could not have supported a finding

of duress. Therefore, the district court did not err in refusing

to give an instruction on the duress defense.

C. Denial of Instruction on Impeachment by Prior Conviction

González next claims that the district court committed

reversible error when it failed to give his requested instruction

concerning the impeachment of witnesses by prior conviction.

We review the district court's refusal to give this

requested jury instruction under an abuse of discretion standard.

United States v. De La Cruz, 514 F.3d 121, 139 (1st Cir. 2008).

The refusal to give a requested instruction constitutes a

reversible error "only if the instruction (1) is substantively

correct; (2) was not substantially covered in the charge actually

delivered to the jury; and (3) concerns an important point in the

trial so that the failure to give it seriously impaired the

defendant's ability to effectively present a given defense."

United States v. González-Soberal, 109 F.3d 64, 70 (1st Cir. 1997)

(quoting United States v. Gibson, 726 F.2d 869, 874 (1st Cir.

1984)). Under the third requirement, "reversal is not required

unless a defendant suffers substantial prejudice." De La Cruz, 514

F.3d at 139.

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 Here, González requested a jury instruction on

impeachment of witnesses by prior conviction because government

witnesses Cotto and Eusebio Hernández ("Hernández") both had prior

felony convictions.9 The government did not object to the

instruction. The district court, however, denied the instruction

because it understood that the instruction is warranted only if the

witness denies the prior conviction. Since both Cotto and

Hernández had admitted their prior convictions while testifying,

the district court declined to give the requested instruction.

González is correct that the district court misunderstood

the applicable law. Impeachment by prior conviction means that the

witness's character for truthfulness may be attacked by evidence of

certain criminal convictions. See Fed. R. Evid. 609(a). It does

not require that the witness first deny the prior criminal

conviction. Id. However, this does not amount to a reversible

error in this case.

This circuit's pattern instruction on impeachment of

witness testimony by prior conviction reads: "You have heard

evidence that [witness] has been convicted of a crime. You may

consider that evidence, together with other pertinent evidence, in

deciding how much weight to give to that witness's testimony."

9
Cotto's conviction related to the bribery incident when he was
a police officer, while Hernández's conviction resulted from his
own participation in the sham drug transactions with González.

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Pattern Crim. Jury Instr. 1st Cir. § 2.03 (1998) (alteration in

original).

The jury instruction provided by the district court

included the following language:

You have heard the testimony of Héctor Cotto
and Eusebio Hernández, that they provided
evidence under agreements with the government
and or participated in the crime charged
against the defendant and or received money
from the government in exchange for providing
information. Some people in this position are
entirely truthful when testifying. Still you
should consider the testimony of these persons
with particular caution. You may consider
they may have had reason to make up stories or
exaggerate what others did because they wanted
to help himself [sic]. You must determine
whether the testimony of such a witness has
been affected by any interest in the outcome
of this case, any prejudice for or against the
defendant, or by any of the benefits he has
received. You may consider their guilty pleas
in assessing their credibility, but you are
not to consider their guilty pleas as evidence
against this defendant in any way. (Emphasis
added).

Although the instruction given by the district court did

not contain the specific language sought by González, "there is no

reversible error if the jury charge taken as a whole substantially

covered the issues contained in the requested instruction." United

States v. Angiulo, 897 F.2d 1169, 1207 (1st Cir. 1990). "The

charge need not follow the exact form and wording of the

defendant's proposed instructions." González-Soberal, 109 F.3d at

70 (internal quotations omitted).

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 We conclude that the instruction given to the jury

substantially addressed issues of credibility with respect to both

government witnesses. The fact that both Cotto and Hernández each

had a prior felony conviction was elicited, and thus, the jury was

aware of their criminal backgrounds. The district court then

reminded the jury that the two witnesses had guilty pleas and had

cooperation agreements with the government. It instructed the jury

that they had the duty to determine credibility, that the jury

should consider the testimony of these two witnesses with greater

caution, and that they were to consider all the factors they deemed

relevant in assessing their credibility, including the prior guilty

pleas of both Cotto and Hernández. González has presented no

evidence that would lead us to believe that the jury felt prevented

from viewing the testimony of these two government witnesses with

particular skepticism or greater caution. Therefore, we find no

error in the instructions given. See González-Soberal, 109 F.3d at

71 (finding no error where the district court failed to give the

impeachment by prior conviction instruction, because the

instruction provided reminded the jury that the two witnesses had

been convicted, that they had cooperation agreements with the

government, and that the jury should view their testimony with

greater caution).

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D. Closing Arguments

1. González's closing argument

González alleges that during his closing argument the

district court made several unjustified sua sponte interruptions,

and sustained various unfounded objections interposed by the

government, which prevented him from making an effective closing

argument and thus rendered the trial unfair. Based on these

alleged interruptions and objections, González moved for a new

trial. The district court denied González's motion under Federal

Rules of Criminal Procedure Rule 33, finding that the court's

interjections were warranted and that it had been correct in its

rulings sustaining objections made during González's closing

argument. The court also found that even if error occurred,

González had not been prejudiced by the court's interjections and

rulings. González appeals the denial of his motion for a new

trial.

We review the denial of a Rule 33 motion for a new trial

for "manifest abuse of discretion." United States v. Valerio, 676

F.3d 237, 246 (1st Cir. 2012). A new trial is granted "sparingly,"

and only where there would be "a miscarriage of justice and where

the evidence preponderates heavily against the verdict." United

States v. Merlino, 592 F.3d 22, 32 (1st Cir. 2010) (quoting United

States v. Wilkerson, 251 F.3d 273, 278 (1st Cir. 2001)). When

determining the prejudicial effect of challenged acts, a court

-22-
should not grant a motion for a new trial where a process, although

imperfect, adequately protected the defendant's rights. United

States v. Glantz, 810 F.2d 316, 321 (1st Cir. 1987). Rather, the

court must decide whether the alleged errors affected the

defendant's substantial rights. United States v. Meserve, 271 F.3d

314, 332 (1st Cir. 2001). After all, "the Constitution entitles a

criminal defendant to a fair trial, not a mistake-free trial." Id.

(quoting United States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir.

1993)).

In general, we have recognized that, "a judge is not a

mere umpire; he is the governor of the trial for the purpose of

assuring its proper conduct, and has a perfect right -- albeit a

right that should be exercised with care -- to participate actively

in the trial proper." United States v. Ofray-Campos, 534 F.3d 1,

33 (1st Cir. 2008) (quoting Logue v. Dore, 103 F.3d 1040, 1045 (1st

Cir. 1997)) (quotation marks omitted). Trial judges also have

"broad discretion over the scope of summations." United States v.

Grabiec, 96 F.3d 549, 552 (1st Cir. 1996).

González alleges that, while defense counsel was "arguing

that Cotto was unworthy of belief," the district court improperly

interrupted him and stated: "Counsel, I assume that is your

position, it will be for the jury to determine based on the

evidence whether he lied or not." González claims that this

statement by the court improperly "sent the message that his

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position was not one shared by the court." We disagree. First,

counsel should refrain from making statements that convey a

personal opinion relating to a witness's credibility. See United

States v. Auch, 187 F.3d 125, 131 (1st Cir. 1999); Grabiec, 96 F.3d

at 550 (observing that the rule that counsel must not express a

personal opinion, though generally applied to prosecutors, "applies

both ways"). Second, the court's statement did not indicate,

either explicitly or implicitly, that the court did not share

defense counsel's position. Furthermore, even if the jury could

have inferred anything from the court's statement, any prejudice

from such inference would have been cured by the court's

instruction to disregard its comments and admonishments to counsel.

Specifically, the court gave the following instruction:

Do not assume from anything that I may have
said that I have any opinion concerning any of
the issues in this case. Except for my
instructions to you on the law, you should
disregard anything that I may have said during
the trial in arriving at your own findings as
to the facts. . . . You are to draw
absolutely no inference against the side to
whom an admonition of the Court may have been
addressed during the trial.

We assume the jury to have followed the court's instructions. See

United States v. Rodríguez, 675 F.3d 48, 63 (1st Cir. 2012).

González also complains that when defense counsel

intended to use transcripts to refresh a witness testimony to the

jury, the district court interrupted him and said "I will request

that you argue, the transcript is not in evidence." Although

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González avers that the use of transcripts may ensure the accuracy

of the recitation of a testimony, here, defense counsel was not

merely reading from transcripts. Rather, he was also projecting

the transcripts from the overhead projector and referencing them as

evidence. Since these transcripts were not in evidence, we find no

error in the court's interjection. See Herring v. New York, 422

U.S. 853, 862 (1975) (recognizing the broad discretion of the trial

judge in closing arguments). We note that the court did not

prevent defense counsel from arguing the content of the transcripts

or otherwise getting his point across. Rather, it only instructed

him not to refer to something as evidence that had not been

admitted as such.

Next, González alleges that while defense counsel was

arguing that the sting operation was "poorly planned" and that "out

of 17 people, we have 15 or 16 who were mechanics, truck drivers,"

the court interrupted him and said that he was misquoting the

evidence, that there was no "evidence for that amount of people"

and that he should "stick to the evidence." There was no error.

The evidence admitted at trial simply did not support defense

counsel's contention. Faced with this misquoting of the evidence,

it was within the district court's discretion to interrupt defense

counsel's argument. See United States v. DiSanto, 86 F.3d 1238,

1248 (1st Cir. 1996) (noting that the district court is "best

situated to make a battlefield assessment of the impact that a

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particular piece of improper information may have on a jury"

(quoting United States v. Rivera-Gómez, 67 F.3d 933, 998 (1st Cir.

1995))).

González also alleges that, while defense counsel was

arguing about the timing for retrieving the firearms from his home,

the district court improperly interrupted him and concluded that he

was making reference to punishment and that there was an issue of

jury nullification. The court's interruptions responded to defense

counsel's reference to González having been in prison since October

2010, not being back home since his arrest, and not being back home

for more than a year. Because the arguments were directed at the

gun charges and the jury acquitted González of all such charges, we

need not decide whether the district court's ruling on this matter

was correct, as any error would be harmless. See United States v.

Crochiere, 129 F.3d 233, 236 (1st Cir. 1997) (holding that the

acquittal rendered the alleged error harmless).

González also challenges the court's interjections when

defense counsel was arguing that the design of the sting operation

was flawed. In making his point, defense counsel stated that the

operation "attracted people simply down and out, and in need of

money"; that those attracted were "simply poor and vulnerable"; and

that the government should "go after the real drug traffickers,

[that] this island is full of drug traffickers." The government

objected to these statements and the court sustained the

-26-
objections. There was no error. Although jurors have the power to

set an accused free for any reason or for no reason, their duty is

to apply the law as given to them by the court. United States v.

Appolon, 695 F.3d 44, 65 (1st Cir. 2012). "Neither the court nor

counsel should encourage jurors to exercise their power to

nullify." Id. (quoting United States v. Bunchan, 626 F.3d 29, 34

(1st Cir. 2010)) (internal quotation marks omitted). Here, by

suggesting that there are worse people out there, and that the

government should go after them and not after the poor and

vulnerable, defense counsel was encouraging the jury to disregard

the law and acquit González. Thus, the statements were aimed at

jury nullification and the government's objections were properly

sustained.

We need not recount in detail the additional

interjections and government objections about which González now

complains. For present purposes, it suffices to say that we have

reviewed each of them in the context of the record as a whole.

They involved either defense counsel's attempt to instruct the jury

as to legal issues, to argue the entrapment defense despite being

precluded from doing so by a prior court order, defense counsel's

opinion about the credibility of witnesses, or arguments

specifically related to the gun charges for which González was

acquitted. Even if the court's ruling on these matters were

-27-
erroneous, they would be harmless. See Rodríguez, 675 F.3d at 61-62.

Additionally, as discussed supra, following closing

arguments, the court explicitly instructed the jury that, in

rendering its decision, it should not consider the court's comments

and admonishments to counsel, nor the objections or arguments made

by counsel.

Consequently, we conclude that González was not

prejudiced by the trial court's rulings and interjections, nor was

his right to a fair trial infringed upon. Thus, the district court

did not manifestly abuse its discretion in denying González's

motion for a new trial. See Merlino, 592 F.3d at 32.

2. The Government's rebuttal argument

Finally, González claims that the government made some

improper remarks in its rebuttal argument which rendered the trial

unfair. Where a timely objection was made, "[w]e review de novo

whether the challenged portion of the government's closing argument

was improper and, if so, whether it was harmful." Appolon, 695

F.3d at 66. The prosecutor's improper statements during closing

argument are considered harmful if they "so poisoned the well that

the trial's outcome was likely affected, thus warranting a new

trial." Rodríguez, 675 F.3d at 62 (quoting United States v.

Azubike, 504 F.3d 30, 39 (1st Cir. 2007)); United States v. Garza,

435 F.3d 73, 77 (1st Cir. 2006) ("A non-constitutional evidentiary

error is harmless . . . so long as it is highly probable that the

-28-
error did not influence the verdict." (quoting United States v.

Piper, 298 F.3d 47, 56 (1st Cir. 2002)) (internal quotation marks

omitted)). In making this determination, we focus on (1) the

severity of the misconduct, including whether it was isolated

and/or deliberate; (2) whether curative instructions were given;

and (3) the strength of the evidence against the defendant.

Rodríguez, 675 F.3d at 62.

In contrast, we review for plain error "any part of the

government's rebuttal argument which the defendant failed to object

to." Id. at 64. To meet this "exacting standard," id., the

defendant must show that an error occurred, which was clear or

obvious and which not only affected the defendant's substantial

rights, but also seriously impaired the fairness, integrity, or

public reputation of judicial proceedings. Id.; United States v.

Pires, 642 F.3d 1, 14 (1st Cir. 2011). "[P]lain error review tends

to afford relief . . . only for 'blockbuster' errors." Rodríguez,

675 F.3d at 64 (citations omitted).

During the rebuttal argument, the government responded to

González's reference that the "government ha[d] a problem" by

stating: "Do you know how many times the government doesn't have

evidence like you saw in this case?" The government also stated

that defense counsel wanted to confuse the jury, since defense

counsel was unable to make González disappear from the videos

played at trial. González timely objected to both statements, and

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the district court overruled both objections. González now claims

that the government improperly compared the evidence in this case

to that in other cases and, thus, engaged in bolstering,10 and that

it misstated and disparaged the defense strategy by taking aim at

defense counsel.

The challenged government statements were not improper.

Regarding the first statement, defense counsel invited the

prosecutor's comparison to other cases by stating that the

government "ha[d] a problem in this case . . . . They are very

concerned that they had to rely so much on Cotto and Eusebio

Hernández to prove their charges." It was reasonable for the

prosecutor to respond that it did not have a problem because in

this case, unlike many others, there was video evidence linking

González to the crimes charged. See United States v. Ayala-García,

574 F.3d 5, 18 (1st Cir. 2009) ("Our cases establish that some

leeway is appropriate when the government's challenged comments may

fairly be seen as a response to comparable remarks by defense

counsel."). And contrary to González's contentions, the

government's comments cannot fairly be read to suggest that

evidence not presented at trial supported the defendant's guilt.

10
We note that bolstering generally "occurs when a prosecutor
implies that a witness's testimony is corroborated by evidence
known to the government but not known to the jury." United States
v. Valdivia, 680 F.3d 33, 48 (1st Cir. 2012) (citations omitted).

-30-
Instead, the prosecutor was pointing out how much inculpatory

evidence the government had introduced at trial.

The prosecutor's further suggestions that defense counsel

was trying to confuse the jury because he could not make González

disappear from the videos, while perhaps impolitic, did not render

the trial unfair. These comments, too, referred to the strength of

the government's case (specifically, the fact that there was video

evidence). Moreover, United States v. Manning, which González

cites for his argument that the comments were improper, involved

statements much more egregious than those in this case: there, the

prosecutor stated that the role of the defense counsel in a

criminal trial is to "cloud the issues or make smoke screens," and

he "liken[ed] them to Shakespeare's players, full of sound and fury

signifying nothing." 23 F.3d 570, 573 n.1 (1st Cir. 1994).

Nothing like that was said in this case.

Finally, González alleges that the government misstated

the law as to "reasonable doubt" and "criminal intent." Since

González did not contemporaneously object to these allegedly

improper statements, we review them only for plain error.

Rodríguez, 675 F.3d at 64. González fails to meet that standard.

The statement regarding "reasonable doubt" was made in

the context of the firearm charges and González was acquitted of

all such charges, which makes clear that such alleged error does

not meet the standard for plain error. As to the other statement,

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the government said that "all criminal intent means is that

[González] knew he was breaking the law." González has failed to

show that, when read in context, the statement was clearly and

obviously erroneous. Moreover, after closing arguments, the

district court gave specific instructions as to what both criminal

intent and reasonable doubt meant. González does not point to

anything indicating that the jury disregarded these instructions

and we ordinarily presume that juries follow instructions. See id.

at 63. He has simply failed to show that the alleged misstatements

of the law affected his substantial rights and seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings. Pires, 642 F.3d at 14; see also Rodríguez, 675 F.3d

at 65 (noting that the fact that defendant had objected to the

prosecutor's statements during closing argument, but had failed to

do so during rebuttal suggested that even the defendant "failed to

regard the comments as having a damaging effect" (citations

omitted)). Thus, the alleged errors do not constitute the

"blockbuster" errors required to satisfy the plain error standard.

Rodríguez, 675 F.3d at 64.

III. Conclusion

The record reflects that González was afforded a fair and

impartial trial, that he was not entitled to entrapment or duress

instructions, that the denial of the requested instructions on

impeachment of witnesses for prior convictions did not constitute

-32-
reversible error, and that his conviction was not tainted by

prejudicial error either from the district court or in the

government's rebuttal argument. Accordingly, his conviction is

affirmed.

Affirmed.

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